The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KASHIF A. RASHEED, DOCKET NUMBER
Appellant, SF-0752-13-0191-I-1
v.
DEPARTMENT OF DATE: August 4, 2014
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kashif A. Rasheed, Compton, California, pro se.
Lierre M. Green, Esquire, Los Angeles, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
upheld his removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The agency employed the appellant as a Drug and Alcohol Compliance and
Enforcement Inspector. Initial Appeal File (IAF), Tab 7, Subtab 4b. From July
25-28, 2011, the appellant took leave. IAF, Tab 4, Subtab 4m at 2. Due to the
appellant’s conduct in connection with this leave and the subsequent
investigation, the agency proposed his removal. IAF, Tab 4, Subtab 4g. The
charges included (1) making false or misleading statements in connection with
any inquiry, investigation, etc., for oneself or another; (2) misrepresenting
information on time and attendance records for oneself; and (3) absence without
leave. Id. at 1-6.
¶3 For the first charge, the agency alleged that the appellant made false or
misleading statements during his interview with the agency when he claimed to
have been instructed to appear for jury service and claimed that he appeared for
that jury service. Id. at 1-4. For the second charge, the agency alleged that the
appellant misrepresented information on his time and attendance records by
claiming court leave when he was not actually serving or required to serve jury
duty. Id. at 4-5. For the third charge, the agency alleged that the appellant’s
leave was denied, resulting in his being absent without leave for the days and
3
times that he claimed court leave. Id. at 5-6. The appellant responded to the
charges, IAF, Tab 4, Subtab 4f, but the agency sustained the removal, effective
March 21, 2012, IAF, Tab 4, Subtab 4d at 1-4, Tab 7, Subtab 4b.
¶4 The appellant appealed to the Board, IAF, Tab 1, and the administrative
judge affirmed the removal, IAF, Tab 25, Initial Decision (ID). The appellant has
filed a petition for review. 2 Petition for Review (PFR) File, Tab 1. The agency
has submitted a response, PFR File, Tab 8, and the appellant has replied, PFR
File, Tabs 9-10.
¶5 In his petition for review, the appellant presents several arguments, which
we construe liberally. See Melnick v. Department of Housing and Urban
Development, 42 M.S.P.R. 93, 97 (1989) (a pro se appellant’s pleadings are to be
liberally construed), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). He asserts
that the agency did not provide preponderant evidence to support its charges, PFR
File, Tab 1 at 5, and that the agency failed to establish a nexus between the
charged misconduct and the efficiency of the service, id. at 5-7. The appellant
also claims that the agency did not properly consider several mitigating factors
and that the penalty of removal was beyond the tolerable limits of reasonableness.
Id. at 5-6, 20-24. He reasserts two affirmative defenses, alleging that he was
subject to a disparate penalty based upon race, id. at 4, and that the agency’s
removal was reprisal for equal employment opportunity (EEO) activity, id. at 8,
10. Finally, he alleges that the administrative judge abused his discretion or
otherwise exhibited bias. Id. at 9-10.
2
Because the appellant initially filed his petition for review with the Board’s Western
Regional Office on an initial appeal form, rather than with the Clerk of the Board, as
required, his August 19, 2013 petition was not recognized until May 14, 2014. See PFR
File, Tab 1 at 1-3, Tab 7 at 1; see also 5 C.F.R. § 1201.114(d) (indicating that petitions
for review are to be filed with the clerk of the Board). The Clerk of the Board served
the agency with the filing, providing until June 9, 2014, to respond. PFR File, Tab 7 at
1. Although the agency timely responded, PFR File, Tab 8, the appellant alleges that
the agency was given an unfair advantage, PFR File, Tab 9 at 5. However, we find no
such advantage. The agency was provided an appropriate deadline for responding under
the circumstances.
4
The administrative judge applied the correct burden of proof and made
appropriate credibility determinations.
¶6 The administrative judge sustained each of the agency’s three charges. ID
at 5-9. On review, the appellant asserts that the agency and administrative judge
distorted the facts and “only made attempts at inferences and implications,” rather
than proving the charges on the merits. PFR File, Tab 1 at 5. He also disputed
the administrative judge’s credibility determinations and called the charges
“arbitrary [and] unsubstantiated allegations.” Id. at 7.
¶7 Generally, in an adverse action appeal, the agency must prove its charge by
a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). A preponderance of
the evidence is that degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
¶8 Here, the agency presented significant evidence. See ID at 2-9. Most
notably, the agency supplied a letter from the Director of the Jury Services
Division for the Los Angeles County Superior Court, and testimony of a Los
Angeles County Superior Court Senior Court Services Supervisor. IAF, Tab 4,
Subtab 4k at 7-9; Hearing CD (Testimony of Maisha Elis). Both indicated that
the appellant was not instructed to report for jury duty during the week he
claimed 4 days of court leave. IAF, Tab 4, Subtab 4k at 8; Hearing CD
(Testimony of Elis). The Director’s letter detailed the timeline of events,
including the appellant’s calls, each night during the week in question, to the
court’s automated system which instructed him not to report for jury duty the
following day but instead to call again the next night. IAF, Tab 4, Subtab 4k at
7-8.
¶9 When he responded to the agency’s inquiry about his conduct, the appellant
provided a different account of the events. In a sworn statement, the appellant
alleged that the court’s automated system directed him to appear for jury duty on
each of the 4 days he was absent from work and took court leave. Id. at 15-16.
5
He alleged that he spent all or part of each of those 4 days at the courthouse. Id.
However, after the appellant’s sworn statement, the agency sought and received a
follow-up letter from the court’s Jury Services Director. IAF, Tab 4, Subtab 4h at
2-4. According to the Director, the court’s records indicated that the appellant
had not been at the courthouse, because his name did not appear on any of the
week’s roll call lists, and his juror badge was never scanned. Id. at 3.
¶10 Testifying at his hearing, the appellant alleged that the court’s records may
have been altered by someone within the agency. See ID at 7; Hearing CD
(Testimony of the appellant).
¶11 On review, the appellant alleges that the administrative judge erred in
crediting the agency’s witnesses’ testimony and discrediting the testimony of his
witnesses. PFR File, Tab 1 at 10, 17-20. Specifically, he asserts that his
supervisor and the manager of the Drug Abatement Division provided incredible
or even perjured testimony in describing their own conduct and prior discipline
the agency has imposed. Id. According to the appellant, his witnesses, PW, AM,
and KG, provided the more truthful and relevant testimony, discrediting the
agency’s witnesses while also demonstrating a pattern of discrimination. Id. at
17-20.
¶12 In his decision, the administrative judge properly identified the factual
questions in dispute, summarized the evidence, stated which version he believed,
and explained why he found the chosen version of events more credible than the
other. ID at 2-8; see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
(1987) (listing those factors to be considered by an administrative judge in
resolving credibility issues). The Board must give deference to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly,
on the observation of the demeanor of witnesses testifying at a hearing; the Board
may overturn such determinations only when it has “sufficiently sound” reasons
for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002) . Although the appellant disagrees with the administrative judge’s
6
conclusions in favor of the agency, his petition has provided no reason for the
Board to overturn the judge’s credibility determinations and substitute its own,
nor has he otherwise shown that the judge erred in finding the agency’s charges
supported by preponderant evidence.
The agency established a nexus between the appellant’s discipline and the
efficiency of the service.
¶13 The administrative judge found that there was a clear nexus between the
agency’s discipline for the charged conduct and the efficiency of the service. ID
at 15; see 5 U.S.C. § 7513(a). The appellant disputes this, alleging that, even if
the agency proved its charges, it failed to establish a nexus. PFR File, Tab 1 at
5-7.
¶14 As previously discussed, the charges included (1) making false or
misleading statements in connection with any inquiry, investigation, etc., for
oneself or another; (2) misrepresenting information on time and attendance
records for oneself; and (3) absence without leave. IAF, Tab 4, Subtab 4g at 1-6.
Although the appellant’s petition describes the conduct at issue as off-duty
misconduct, PFR File, Tab 1 at 6, the charges clearly reflect otherwise. In
addition, while the appellant asks the Board to address the issue of nexus, his
petition does not provide a substantive basis for such review. See PFR File, Tab
1 at 5-7, Tab 9 at 15. He has failed to present any argument that the charged
misconduct does not disrupt the efficiency of the service. Id.
¶15 Mere disagreement with the administrative judge’s findings does not
warrant full review of the record by the Board. Weaver v. Department of the
Navy, 2 M.S.P.R. 129, 133-34 (1980). Moreover, the Board has previously found
that falsification is inherently destructive of the agency’s faith in an employee’s
trustworthiness and honesty, essential elements in the relationship of an employer
and employee, Connett v. Department of Navy, 31 M.S.P.R. 322, 328 (1986),
aff’d, 824 F.2d 978 (Fed. Cir. 1987), and that unauthorized absence is a proper
ground for removal since by its very nature it disrupts the efficiency of the
7
service, Roberson v. Veterans Administration, 27 M.S.P.R. 489, 493-94 (1985).
Accordingly, we find no error in the administrative judge’s conclusion that the
agency proved nexus.
The agency established that removal was within the tolerable bounds of
reasonableness.
¶16 The appellant’s petition argues that mitigating factors outweigh the
seriousness of his alleged misconduct. 3 PFR File, Tab 1 at 20-24. He asserts that
he had no prior misconduct; this was an isolated incident; he is not a manager; he
is extremely dependable; and he was under distress due to a hostile work
environment. Id. at 21-24. The appellant also alleges that the charged conduct
did not affect the agency’s operation and mission because, according to the
testimony of his supervisor, the agency avoided any negative impact by simply
replacing him. Id. at 20. Finally, he alleges that the agency failed to consider
alternative sanctions. Id. at 24.
¶17 In Douglas v. Veterans Administration, the Board recognized a number of
relevant factors in determining that a penalty is within the tolerable bounds of
reasonableness. 5 M.S.P.R. 280, 305-07 (1981). The evidence demonstrated that
the agency weighed relevant factors before finding that the mitigating factors 4 did
not outweigh the seriousness of his misconduct and the resulting loss of trust.
3
The appellant’s petition also alleges that the agency erred by not providing him with
this Douglas factor analysis. PFR File, Tab 1 at 5. However, to the contrary, the
agency’s consideration of Douglas factors is contained within its proposal and decision
letters. IAF, Tab 4, Subtab 4d at 3-4, Subtab 4g at 6-7.
4
The appellant’s petition indicates that he did not gain anything from the misconduct
and that he apologized for the error. PFR File, Tab 1 at 21-22. However, an individual
clearly gains by taking court leave if he is not actually entitled to court leave. In
addition, while the appellant acknowledged some mistakes with inputting time and
attendance, he continually disputed the allegations that he was not entitled to court
leave and that he provided false information about it. See IAF, Tab 4, Subtab 4f,
Subtab 4d at 1-3. Even on petition for review, the appellant characterizes his apology
as for his “unintentional error.” PFR File, Tab 1 at 22. Therefore, we do not agree with
the appellant that these were additional mitigating factors that the agency should have
considered.
8
IAF, Tab 4, Subtab 4d at 3-4, Subtab 4g at 6-7. The agency acknowledged that
the appellant had 11 years of service with no history of discipline, and that he had
met performance expectations. IAF, Tab 4, Subtab 4d at 3. Nevertheless,
removal was consistent with its table of penalties, and the agency reasoned that
behavior of employees in the appellant’s position must be beyond reproach, as
they may be required to serve as a witness in litigation. IAF, Tab 4, Subtab 4d at
3-4, Subtab 4g at 6-7; see IAF, Tab 4, Subtab 4s at 4-5 (relevant pages from the
agency’s table of penalties).
¶18 The administrative judge concluded that the agency’s deciding official
adequately addressed all the relevant factors and exercised his management
discretion within tolerable limits of reasonableness in selecting the penalty of
removal. ID at 15-16; see Douglas, 5 M.S.P.R. at 306 (the Board’s review of an
agency-imposed penalty is essentially to ensure that the agency did
conscientiously consider the relevant factors and did strike a responsible balance
within tolerable limits of reasonableness). Although the appellant asserts that a
lesser penalty would have been reasonable, we find no reason to disturb the
administrative judge’s conclusion that removal was within the tolerable limits of
reasonableness.
The appellant failed to prove his affirmative defense of race discrimination.
¶19 The administrative judge found that the appellant failed to prove any of his
affirmative defenses, including his allegation of race discrimination. ID at 10-14.
On review, the appellant again asserts that his penalty was more severe than the
penalties of others. PFR File, Tab 1 at 4, 6-7. He alleges that at least four other
employees of another race were similarly situated but received lesser penalties.
Id. at 12-16.
¶20 For employees to be deemed similarly situated for purposes of an
affirmative defense of discrimination based on disparate treatment, all relevant
aspects of the appellant’s employment situation must be “nearly identical” to
those of the comparator employees. Hooper v. Department of
9
Interior, 120 M.S.P.R. 658, ¶ 6 (2014). Therefore, comparators must have
reported to the same supervisor, been subjected to the same standards governing
discipline, and engaged in conduct similar to the appellant’s without
differentiating or mitigating circumstances. Id.
¶21 In his decision, the administrative judge found that only one of the alleged
comparators was disciplined by the same deciding official. ID at 13. He also
found that, while the appellant’s comparative examples involved false or
inaccurate time and attendance records, they did not include multiple charges nor
did they pertain to making false statements under oath in an official investigation.
ID at 13. Therefore, the administrative judge reasoned that the appellant’s
comparative examples were not meaningfully similar. ID at 13-14. Although the
appellant repeats his claims of disparate treatment on review, citing to the same
four comparative examples, PFR File, Tab 1 at 12-16, he has failed to
demonstrate any error in the administrative judge’s conclusion that they were not
meaningfully similar.
The appellant failed to prove his affirmative defense of reprisal for a protected
activity.
¶22 The administrative judge found that the appellant failed to meet this burden
of proving the affirmative defense of retaliation for a protected activity. ID at
14-15. On review, the appellant reiterates his allegations that the removal action
was taken in reprisal for prior EEO activity. PFR File, Tab 1 at 8, 10.
¶23 To prove retaliation based on prior EEO activity, an appellant must show
that: (1) he engaged in a protected activity; (2) the accused official knew of the
protected activity; (3) the adverse action under review could have been retaliation
under the circumstances; and (4) there was a genuine nexus between the alleged
retaliation and the adverse action. Oulianova v. Pension Benefit Guaranty
Corporation, 120 M.S.P.R. 22, ¶ 14 (2013). To establish a genuine nexus
between the protected activity and the adverse employment action, the appellant
10
must prove that the employment action was taken because of the protected
activity. Id.
¶24 In concluding that the appellant failed to meet his burden, the
administrative judge found that the appellant had not shown that the deciding
official had any knowledge of the prior EEO activity. ID at 14-15. The appellant
repeats the assertion that his removal action was taken in reprisal for prior EEO
activity on review, but he has provided no substantive argument on the point.
PFR File, Tab 1 at 8, 10. The appellant simply alleges that the administrative
judge erred in finding that he failed to establish EEO reprisal. Id. at 10.
However, this disagreement does not warrant full review of the record by the
Board. See Weaver, 2 M.S.P.R. at 133-34 (when an alleged factual error relates
to a credibility determination, the petition for review must contain some specific
citation of evidence or reasons warranting review). We find the administrative
judge’s finding regarding the appellant’s reprisal claim to be well-reasoned, and
decline to disturb that finding on review.
The administrative judge did not abuse his discretion by limiting the hearing,
denying some of the appellant’s requested witnesses, or limiting discovery, and
the appellant failed to demonstrate judicial bias.
¶25 According to the appellant, the administrative judge cited a limited schedule
and busy calendar during a prehearing conference as he questioned how long the
proceedings would last. PFR File, Tab 1 at 9. The appellant also alleges that the
administrative judge denied his request to call several witnesses regarding
comparable discipline. Id. at 9-10. Next, the appellant alleges that he was denied
access to internal security reports of investigations for other employees. Id. at 9.
Finally, the appellant alleges that the administrative judge exhibited bias. Id. at
26.
¶26 While the appellant alleges that the judge questioned how long the hearing
would last, he did not allege that the amount of time provided for the hearing was
actually limited. Id. at 9. In addition, he presented no argument that his
11
substantive rights were prejudiced, even if the judge did limit his hearing in some
way. Moreover, the Board’s regulations provide an administrative judge with
wide discretion to control a hearing. Franco v. U.S. Postal Service, 27 M.S.P.R.
322, 325 (1985); 5 C.F.R. § 1201.41(b). This includes the authority to regulate
the course of the hearing. 5 C.F.R. § 1201.41(b)(6).
¶27 An administrative judge also is provided with the authority to exclude
witnesses an appellant has not shown would offer relevant, material, and
nonrepetitious evidence. Franco, 27 M.S.P.R. at 325; 5 C.F.R. § 1201.41(b)(8),
(10). Where an appellant presents a vague assertion on review that the
administrative judge erred in disallowing witnesses, without showing that the
testimony would have been relevant, material, or not repetitious, he has not
shown that the administrative judge abused his discretion. Vaughn v. Department
of Treasury, 119 M.S.P.R. 605, ¶ 13 (2013). In addition, an appellant’s failure to
timely object to rulings on witnesses precludes him from doing so on petition for
review. Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). Finally, an
administrative judge also has broad discretion in ruling on discovery matters, and,
absent a showing of abuse of discretion, the Board will not find reversible error in
such rulings. Vaughn, 119 M.S.P.R. 605, ¶ 15; 5 C.F.R. § 1201.41(b)(4).
¶28 As the Board understands his petition, the appellant asserts that the rejected
witnesses and records would have aided in establishing his affirmative defense of
discrimination. However, the appellant did not object below, and, on review, he
has failed to specify how the testimony or evidence was relevant, material and
nonrepetitious. Regarding the alleged denial of internal security reports relating
to other employees, the appellant failed to show any relevance in light of the
administrative judge’s conclusion that the comparator employees were not
similarly situated. Therefore, we find no abuse of discretion. We also find that
the appellant’s broad, general allegations of bias are not sufficient to rebut the
presumption of the administrative judge’s honesty and integrity. See Oliver v.
Department of Transportation, 1 M.S.P.R. 382, 386, 389 (1980).
12
¶29 Based upon the above, we deny the appellant’s petition for review and
affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
13
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.